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S.144

Introduced by   Senator Flanagan of Chittenden District, Senator Lyons of Chittenden District, Senator Ayer of Addison District, Senator Illuzzi of Essex-Orleans District, Senator Kittell of Franklin District and Senator White of Windham District

Referred to Committee on

Date:

Subject:  Crimes; breach of the peace; stalking

Statement of purpose:  This bill proposes to use a reasonable person standard with regard to the elements of stalking; prohibit the harassment of family members as a means of making a person fear unlawful conduct; and establish a procedure whereby a person may obtain an order against stalking against a person that is similar in nature to obtaining an abuse prevention order.

AN ACT RELATING TO STALKING

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  13 V.S.A. § 1061 is amended to read:

§ 1061.  DEFINITIONS

As used in this subchapter,:

(1)  “Stalk” means to engage in a course of conduct which consists of following or, lying in wait for, or harassing, and:

(A)  serves no legitimate purpose; and

(B)  causes the would cause a reasonable person to fear for his or her physical safety or causes the would cause a reasonable person substantial emotional distress.

(2)  “Course of conduct” means a pattern of conduct composed of two or more acts over a period of time, however short, evidencing a continuity of purpose.  Constitutionally protected activity is not included within the meaning of “course of conduct.”

(3)  “Following” means maintaining over a period of time a visual or physical proximity to another person in such manner as would cause a reasonable person to have a fear of unlawful sexual conduct, unlawful restraint, bodily injury, or death.

(4)  “Harassing” means a course of conduct actions directed at a specific person, or a member of the person’s family, which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including but not limited to verbal threats, written, telephonic, or other electronically communicated threats, vandalism, or unconsented to physical contact without consent.

(5)  “Lying in wait” means hiding or being concealed for the purpose of attacking or, harming, or scaring another person.

Sec. 2.  13 V.S.A. § 1063 is amended to read:

§ 1063.  AGGRAVATED STALKING

(a)  A person commits the crime of aggravated stalking if the person intentionally stalks another person; and:

(1)  such conduct violates a court order that prohibits stalking and is in effect at the time of the offense; or

(2)  has been previously convicted of stalking or aggravated stalking; or

(3)  has been previously convicted of an offense an element of which involves an act of violence against the same person; or

(4)  the person being stalked is under the age of 16 years; or

(5)  had a deadly weapon in his or her possession while engaged in the act of stalking.

(b)  A person who commits the crime of aggravated stalking shall be imprisoned not more than five years or be fined not more than $25,000.00, or both.

(c)  Conduct constituting the offense of aggravated stalking shall be considered a violent act for the purposes of determining bail.

Sec. 2.  13 V.S.A. chapter 19, subchapter 8 is added to read:

Subchapter 8.  Orders Against Stalking

§ 1071.  DEFINITIONS

As used in this subchapter:

(1)  “Course of conduct” means a pattern of conduct composed of two or more acts over a period of time, however short, evidencing a continuity of purpose.  Constitutionally protected activity is not included within the meaning of “course of conduct.”

(2)  “Following” means maintaining over a period of time a visual or physical proximity to another person in such manner as would cause a reasonable person to have fear.

(3)  “Harassing” means actions directed at a specific person, or a member of the person’s family, which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including but not limited to verbal threats, written, telephonic, or other electronically communicated threats, vandalism, or physical contact without consent. 

(4)  “Lying in wait” means hiding or being concealed for the purpose of attacking, harming, or scaring another person.

(5)  “Stalk” means to engage in a course of conduct which consists of following, lying in wait for, or harassing a person; and:

(A)  serves no legitimate purpose; and

(B)  would cause a reasonable person to fear for his or her safety or would cause a reasonable person emotional distress.

§ 1072.  JURISDICTION AND VENUE

(a)  The superior court shall have jurisdiction over proceedings under this subchapter.

(b)  Emergency orders under section 1074 of this title may be issued by a judge of the district, superior, or family court.

(c)  Proceedings under this subchapter may be commenced in the county in which the plaintiff resides.  If the plaintiff has left his or her residence to avoid being stalked, the plaintiff shall have the option to bring an action in the county of the previous residence or the county of the new residence.

§ 1073.  REQUESTS FOR AN ORDER AGAINST STALKING

(a)  A person may seek an order against stalking by filing a complaint under this subchapter.

(b)  Except as provided in section 1074 of this title, the court shall grant the order only after notice to the defendant and a hearing.  The plaintiff shall have the burden of proving by a preponderance of the evidence that the defendant stalked the plaintiff.

(c)  If the court finds that the defendant has stalked the plaintiff and that there is a danger of further stalking, the court shall make such orders as it deems necessary to protect the plaintiff.  Such orders shall require that the defendant refrain from stalking the plaintiff and from interfering with his or her personal liberty, and may include restrictions on the defendant’s ability to contact the plaintiff by telephone or by mail and restrictions prohibiting the defendant from coming within a fixed distance of the plaintiff, the plaintiff’s residence, or other designated locations where the plaintiff is likely to spend time.

(d)  Relief shall be granted for a fixed period, at the expiration of which time the court may extend any order, upon motion of the plaintiff, for such additional time as it deems necessary to protect the plaintiff.  It is not necessary for the court to find that stalking has occurred during the pendency of the order to extend the terms of the order.  The court may modify its order at any subsequent time upon motion by either party and a showing of a substantial change in circumstance.

(e)  No filing fee shall be required.

(f)  Every order under this subchapter shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge.

(g)  Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(h)  When findings are required under this section, the court shall make either written findings of fact or oral findings of fact on the record.

(i)  Every final order issued under this section shall bear the following language:  “VIOLATION OF THIS ORDER IS A CRIME AS PROVIDED BY 13 V.S.A. § 1078, AND MAY BE PUNISHED FOR A FIRST OFFENSE BY UP TO ONE YEAR OF IMPRISONMENT OR A FINE OF UP TO $5,000.00, OR BOTH.  For a second or subsequent offense, a person May be imprisoned UP TO three years or fined UP TO $25,000.00, or both.”

§ 1074.  EMERGENCY RELIEF

(a)  In accordance with the rules of civil procedure, temporary orders under this subchapter may be issued ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has stalked the plaintiff.  Upon a finding that there is an immediate danger of further stalking, an order may be granted requiring the defendant to refrain from stalking the plaintiff, and to refrain from interfering with the plaintiff’s personal liberty.

(b)  Every order issued under this section shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge.  Every order issued under this section shall state upon its face a date, time, and place that the defendant may appear to petition the court for modification or discharge of the order.  This opportunity to contest shall be scheduled as soon as reasonably possible, which in no event shall be more than 10 days from the date of issuance of the order.  At such hearings, the plaintiff shall have the burden of proving stalking by a preponderance of the evidence.  If the court finds that the plaintiff has met his or her burden, it shall continue the order in effect and make such other order as it deems necessary to protect the plaintiff.

(c)  Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(d)  Every order issued under this subchapter shall bear the following language:  “VIOLATION OF THIS ORDER IS A CRIME AS PROVIDED BY 13 V.S.A. § 1078, AND MAY BE PUNISHED FOR A FIRST OFFENSE BY UP TO ONE YEAR OF IMPRISONMENT OR A FINE OF UP TO $5,000.00, OR BOTH.  For a second or subsequent offense, a person May be imprisoned UP TO three years or fined UP TO $25,000.00, or both.”

§ 1075.  SERVICE

(a)  A complaint or ex parte temporary order or final order issued under this subchapter shall be served in accordance with the Vermont Rules of Civil Procedure and may be served by any sheriff, deputy sheriff, or municipal or state police officer.  Stalking orders shall be served at the earliest possible time and shall take precedence over other summonses and orders, with the exception of abuse orders.  Orders shall be served in a manner calculated to ensure the safety of the plaintiff.  Methods of service which include advance notification to the defendant shall not be used.  The person making service shall file a return of service with the court stating the date, time, and place that the order was delivered personally to the defendant.

(b)  If service of a notice of hearing issued under section 1073 or 1074 of this title cannot be made before the scheduled hearing, the court shall continue the hearing and extend the terms of the order upon request of the plaintiff for such additional time as it deems necessary to achieve service on the defendant.

§ 1076.  PROCEDURE

(a)  Except as otherwise specified in this subchapter, proceedings commenced under this chapter shall be in accordance with the Vermont Rules of Civil Procedure and shall be in addition to any other available civil or criminal remedies.

(b)  The court administrator shall establish procedures to ensure access to relief after regular court hours or on weekends and holidays.  The court administrator is authorized to contract with public or private agencies to assist plaintiffs to seek relief and to gain access to district, superior, and family courts.  Law enforcement agencies shall assist in carrying out the intent of this section.

(c)  The office of the court administrator shall ensure that the superior court and the district court have procedures in place so that the contents of orders and pendency of other proceedings can be known to both courts for cases in which an order against stalking proceeding is related to a criminal proceeding.

§ 1077.  FILING ORDERS WITH LAW ENFORCEMENT PERSONNEL;

              DEPARTMENT OF PUBLIC SAFETY ORDER AGAINST

              STALKING DATABASE

(a)  Police departments, sheriff’s departments, and state police district offices shall establish procedures for filing notice against stalking orders issued under this subchapter and for making their personnel aware of the existence and contents of such orders.

(b)  Any court in this state that issues a notice against stalking order under this subchapter shall transmit a copy of the order to the department of public safety’s notice against stalking database.

§ 1078.  VIOLATION OF AN ORDER AGAINST STALKING

(a)  For a first offense, a person who violates an order issued in accordance with this subchapter shall be imprisoned not more than one year or fined not more than $5,000.00, or both.  For a second or subsequent offense, a person who violates an order issued in accordance with this subchapter shall be imprisoned not more than three years or fined not more than $25,000.00, or both.

(b)  Upon conviction for a violation of an order issued in accordance with this subchapter, the court shall, unless the circumstances indicate that it is not appropriate or not available, order the defendant to participate in mental health counseling or a domestic abuse program approved by the department of corrections.  The defendant may at any time request the court to approve an alternative program.  The defendant shall pay all or part of the costs of the counseling or program unless the court finds that the defendant is unable to do so.

(c)  Nothing in this section shall be construed to diminish the inherent authority of the courts to enforce their lawful orders through contempt proceedings.

(d)  Prosecution for violation of an abuse prevention order shall not bar prosecution for any other crime, including any crime that may have been committed at the time of the violation of the order against stalking.

§ 1079.  ENFORCEMENT

Law enforcement officers are authorized to enforce orders issued under this subchapter and may rely upon a copy of any order issued under this chapter.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us